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U.S. Supreme Court agrees to hear N.C. board, FTC case

March 03, 2014

The U.S. Supreme Court will review a decision by the federal court of appeals affirming the Federal Trade Commission's claim that the North Carolina Board of Dental Examiners' actions against certain teeth whitening services providers violated federal antitrust laws.

The decision to take the case, announced March 3, is in response to a petition for certiorari by board, and comes about three months after the ADA filed an amicus curiae brief in court supporting the board's petition to have the Supreme Court review the case and the decision by the U.S. 4th Circuit Court of Appeals.

"This case is important because it threatens to impede the ability of all professional boards, including dental boards, to fulfill the purpose for which they were created by their states," said Craig Busey, ADA general counsel. "As duly delegated agencies of the states, the boards' actions should be protected from the federal antitrust laws under the well-recognized state action exemption. We are pleased that the Supreme Court has recognized the case's significance, and we hope that the Court may be persuaded to reverse the appellate court's decision and to clarify these legal issues."

Briefs by the board and its supporters will need to be filed in April. Arguments before the Supreme Court will likely be heard in the fall.

The announcement of the review is the latest step in a series of actions that began with an enforcement proceeding by the FTC against the board.

The board "sought to, and did, exclude nondentist providers from the market for teeth whitening services," the FTC had said in a unanimous ruling issued December 2011.

"As a result of the Board's actions, many nondentists stopped providing teeth whitening services and several marketers of teeth whitening systems stopped selling their products and equipment in North Carolina," the FTC said in upholding an administrative ruling. "In addition, several mall operators refused to lease space to, or cancelled existing leases with, nondentist teeth whitening providers."

The board subsequently filed a petition for review with the appeals court.

On May 31, 2013, the court of appeals, in a case arising from a FTC enforcement proceeding, issued an opinion stating that the dental board, in issuing cease and desist orders against certain purveyors of teeth whitening, had violated federal antitrust laws by engaging in unfair competition in the market for teeth-whitening services in North Carolina.

Following the appeals court decision, the ADA led an effort to draft and file a brief in support of the board's position, enlisting the support of the American Medical Association, American Osteopathic Association, American Veterinary Medicine Association, American Association of Orthodontists, American Association of Dental Boards and other associations. The brief was filed Nov. 27.

In addition, the ADA reached out to the offices of the attorneys general of various states and assisted in getting 10 such states to participate in a brief of their own.